Deuth v. Ratigan

• Decision Date: 12 March 1999
• Docket Number: No. S-97-1280,S-97-1280
• Court: Nebraska Supreme Court
• Parties: Michael G. DEUTH, Appellee, v. Eileen RATIGAN, Appellant.

Page 366

590 N.W.2d 366

256 Neb. 419

Michael G. DEUTH, Appellee, v. Eileen RATIGAN, Appellant.

No. S-97-1280.

Supreme Court of Nebraska.

March 12, 1999.

Syllabus by the Court

1. Judgments: Appeal and Error. On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the lower courts.

2. Rules of Evidence: Appeal and Error. The admissibility of evidence is reviewed for abuse of discretion where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court.

3. Jurisdiction: Appeal and Error. Where the court from which an appeal was taken lacked jurisdiction, the appellate court acquires no jurisdiction.

4. Jurisdiction: Appeal and Error. It is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

5. Limitations of Actions: States: Appeal and Error. Whether the statute of limitations of a sister state or that of Nebraska applies in a given case is a question of law which an appellate court must decide independently of the conclusion reached by the trial court.

6. Statutes. Statutes relating to the same subject matter will be construed to maintain a sensible and consistent scheme, so that effect is given to every provision.

7. Foreign Judgments. The filing of a foreign judgment in a Nebraska court pursuant to Neb.Rev.Stat. § 25-1587.03 (Reissue 1995) is not an action upon a foreign judgment within the meaning of Neb.Rev.Stat. § 25-205 (Reissue 1995).

8. Foreign Judgments: Jurisdiction: Collateral Attack. A foreign judgment filed in a Nebraska court pursuant to Neb.Rev.Stat. § 25- 1587.03 (Reissue 1995) may be collaterally attacked on the ground that the court which entered the judgment lacked jurisdiction to do so, and the resolution of this issue must be made by the Nebraska court.

9. Trial: Evidence: Appeal and Error. Error may not be predicated upon a ruling which excludes evidence unless a substantial right is affected and the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked.

Michael J. Leahy, of Fitzgerald, Schorr, Barmettler & Brennan, P.C., Omaha, for appellant.

Daniel L. Johnson, of Latenser & Johnson, P.C., Omaha, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

Pursuant to the Nebraska Uniform Enforcement of Foreign Judgments Act (NUEFJA), Neb.Rev.Stat. §§ 25-1587.01 to 25-

1587.09 (Reissue 1995), Michael G. Deuth filed a foreign judgment which he had obtained against Eileen Ratigan in the county court for Douglas County, Nebraska. The county court denied Ratigan's motion to vacate the judgment, and the district court for Douglas County affirmed. On her appeal to this court, we affirm in part, reverse in part, and remand with directions for further proceedings.

BACKGROUND

Deuth obtained a default judgment against Ratigan in the district court for Black Hawk County, Iowa, on November 30, 1979. He filed the judgment in the Douglas County Court and mailed notice of the filing to Ratigan on September 12, 1995, pursuant to §§ 25-1587.03 and 25-1587.04. An execution was issued by the county court on September 18 and returned unsatisfied. The court then issued an "Order in Aid of Execution" which required Ratigan to appear for a hearing on November 6 to give testimony regarding her property. Upon Ratigan's failure to appear, an "Order to Appear and Show Cause" was issued by the court on November 9. When Ratigan again failed to appear, a capias was issued on January 5, 1996.

Ratigan entered her voluntary appearance on July 10, 1996, and moved to quash the capias. A hearing was held on July 18, but the bill of exceptions contains a notation that the tape recording of the proceeding had been erased, and thus there is no verbatim record.

The county court entered an order dated August 14, 1996, which referred to an evidentiary hearing, presumably that of July 18. The order also referred to Ratigan's motion to quash the capias, but primarily addressed her contention that the Iowa court lacked jurisdiction over her person when it entered the judgment. In this regard, the court found:

2. The issue at bar arises from evidence that is diametrically opposed. [Deuth] has submitted a copy of a return showing that [Ratigan] was personally served with service of process of the commencement of the Iowa law suit, which resulted in a judgment in the State of Iowa and the subsequent registration in this state. [Ratigan], on the other hand, adduces evidence refuting that any such service of process was had upon [her].

3. It is absolutely impossible for this Court to determine whether [Ratigan] was ever properly served with process, and thus the question of whether the original forum court in the State of Iowa ever had jurisdiction over [Ratigan] is placed in doubt. While the full faith and credit clause of the federal constitution requires one state to give recognition to the judgments of another state, that recognition does not extend where the original jurisdiction of the original forum court is suspect, Yost v. Yost, 161 Neb. 164, 72 N.W.2d 689 (1955). In the case at bar, the jurisdiction of the Iowa court has most definitely been placed in a suspect category, and in such a circumstance it is appropriate for this Court to defer any further post-judgment proceedings against [Ratigan], until after the validity of the Iowa judgment has been determined in the original forum court.

Based upon these findings, the county court canceled the capias; barred further efforts to collect the Iowa judgment until further order of the court; and stated that it would review the matter on November 1, 1996, to determine "what action, if any, [Ratigan] has taken to set aside or invalidate the original judgment entered in the State of Iowa." The court concluded:

It is incumbent upon [Ratigan] to take action to set aside that judgment, and to do so expeditiously, since any further proceedings in the State of Nebraska are based on a determination of the validity of the Iowa judgment. If [Ratigan] does not expeditiously seek to have the original Iowa judgment set aside, between now and November 1, 1996, this Court will have no choice but to then grant full faith and credit to the Iowa judgment and allow post-judgment proceedings.

On August 21, 1996, Ratigan filed a motion requesting the county court to vacate the Iowa judgment. In her motion, Ratigan asserted that the proceeding was barred under Neb.Rev.Stat. § 25-205 (Reissue 1995) The county court entered an order on October 7, 1996, which refers to a September 19 hearing on Ratigan's "Motion to Vacate Judgment." The bill of exceptions reflects that the tape recording of this hearing also was erased, and thus we have no verbatim record. In its October 7 order, the county court did not rule on the motion to vacate but again instructed Ratigan to have the validity of the judgment determined by the Iowa court, and further stated that it would review the matter on December 2 to determine whether Ratigan had complied with this order. The order concluded: "In the event no such action has been taken by December 2, 1996, this Court will thereafter allow execution to follow on its judgment."

                which establishes a 5-year limitation period for an "action upon a ... foreign judgment."   [256 Neb. 422] In the alternative, Ratigan asserted that the Iowa judgment was unenforceable because execution had not occurred within 5 years as required by Neb.Rev.Stat. § 25-1515 (Reissue 1995)
                

On its own motion, the county court then set a hearing "for a determination as to what further proceedings should be held herein." At the hearing held on February 20, 1997, Ratigan's counsel advised the court that Ratigan could not afford counsel to challenge the judgment in Iowa pursuant to the court's previous direction but was willing to testify regarding her claim that the judgment was obtained without personal service upon her. Noting that it had previously ordered Ratigan to have the validity of the Iowa judgment determined by an Iowa court, the county court stated:

The point is, is that you have got to get that Iowa judgement set aside and until you do, you are never going to get the problem cured. They can file their judgement in South Dakota and then refile it here. And then do we have to grant--even if we would find it to be an invalid judgement. So I guess what I--how do I have to get it through to you and your counsel that I don't want to have to keep coming back here unless you go to Iowa and do something about the Iowa judgement. Now, we have wasted how many months and you have done absolutely nothing to get the Iowa judgement set aside. I mean you may have--I'm sure that's probably inaccurate to say absolutely nothing. You have collected a lot of information, but until you set foot in the Iowa courtroom over there and ask that Court, whatever it might be, to vacate that old judgement, you are not going to get anywhere in my court, because that is what I have ordered you to do. Otherwise we just spin our wheels forever.

Ratigan's counsel then suggested that the judge enter a final order so that an appeal could be taken. On April 16, 1997, the county court entered an order finding that "the evidence adduced by [Ratigan] in this foreign judgment proceeding is not sufficient to convince this Court that the Iowa court had no jurisdiction" and thus determined that there was "no basis to vacate the registration of the Iowa judgment." In the same order, the county court found in favor of Deuth on the "statute of limitations issues." It concluded that the "foreign judgment previously registered herein shall remain in full force and effect."

On May 15, 1997, Ratigan filed her notice of appeal to the district court. In her "Statement of Errors" filed in the district court, Ratigan asserted that the county court...